67 So. 963 | Miss. | 1915
delivered the opinion of the court.
Mr. Messina instituted suit against the railroad company for personal injuries, and recovered a judgment for ten thousand dollars. The defendant railroad company appeals.
The evidence for plaintiff discloses that plaintiff had been employed by the railroad company as a switchman; that the day before the injury he had de
“No. 5 reports water high between Beatty and Sawyer ; have had very hard rains in there past three hours; water over the track hut no damage reported, at Sawyer.”
The train then proceeded on its way. There was no scheduled stop between Durant and Winona. After the train passed Beatty, it was then in the storm zone. The engineer testified that he then reduced his speed from fifty miles per hour to thirty-five miles per hour. At the place where the derailment occurred, and for some distance south thereof, a creek paralleled- the railroad, right of way, crossing the track under a trestle about thirty yards wide. About two-hundred and fifty yards south of this trestle there was a curve in the track, and the trestle could not he seen from a north-bound train until the curve was rounded. The locomotive was running thirty-five miles per hour according to the engineer’s testimony, and fifty to sixty miles according to plaintiff’s evidence, when the water over the track came in view of the engineer, after he had passed the curve. The engineer said that he could not have stopped
There is no material conflict in the evidence, except upon the question as to whether or not plaintiff was riding on the engine with the knowledge and consent of the engineer. This question was a question of fact, and its solution was submitted to the jury. It is conceded by counsel for plaintiff that plaintiff was a trespasser,' or a mere licensee, and that the defendant owed him no duty, except to refrain from willfully and wantonly injuring him. If the engineer did not know that plaintiff was riding on the engine, it is conceded that plaintiff must lose his case. Accepting this as a correct interpretation of the law of the case, we find that the disputed question of fact was submitted to the jury.
Appellant earnestly insists that the facts as to just how and why the wreck occurred were proven, and therefore the instruction upon the prima facie statute (section 1985, Code of 1906) should not have been given. This contention, we think, is not supported by the record. If the evidence for plaintiff in regard to the speed of the train is to be taken as true, the negligence of the engineer was so flagrant that the court would have been warranted in instructing the jury peremptorily that his conduct was wanton and in reckless disregard of
The instruction based upon the statute was a little too stout in some particulars, one of which is that the jury should not have been told, “if all the evidence leaves it doubtful,” as to whether the defendant has not met the burden. As recently pointed out by this court in Gentry v. Gulf & Ship Island R. R. Co., 67 So. 849, this language places a greater burden upon the defendant than the law requires it to sustain. In order to meet the prima facie case made by the proof that the injury was inflicted by a running train, it is not necessary for the defendant to do more than to disclose the facts, and if this is done the liability of defendant depends upon the facts and not upon the statutory presumption.
The argument upon the alleged error of the trial court in refusing to give to the jury the counter instruction the defendant was entitled to receive if it had requested same. It is true that this court in the Thornhill Case, 63 So. 674, and in the Daniell Case, 66 So. 730, said that:
“When the facts and circumstances have been ascertained, they must be able to say therefrom that the defendant was guilty of negligence.”
The court below would, no- doubt, have so instructed the jury, if the defendant had seen fit to request such instruction. The defendant did not ask for this instruction, and cannot complain that the court did not do what the statute (section 798, Code of 1906) forbids him to do, unless requested in writing. By the uniform decisions of this court the circuit judge cannot volunteer instructions to the jury, and if he does so he has exceeded his power. The plaintiff’s instruction stated his side of the case, and if the defendant had requested the counter instruction the law of the case would have been
It is argued that the court did not limit the quantum of damages which plaintiff was entitled to recover, in accordance with the provisions of our concurrent negligence statute. Defendant did not ask an instruction along this line, and we think it was error of defendant, rather than the error of the court, that defendant did not get the benefit of the law.
In this case the train was a heavy passenger train, consisting of one mail and one express car, a baggage car, two day coaches, and five sleepers. The crew in charge of this train knew of the threatened danger, and when the train entered the danger zone, it seems to us that the engineer should have reduced his speed to the point where he could have brought it to a standstill in less than one hundred and fifty yards. The evidence shows that he was rounding a curve in the road, and on account of the existing weather conditions he could not see further than twenty-five yards in front of his locomotive. This, we believe, was taking chances with the human lives in his charge, that was little, if any, short of a reckless indifference to the consequences. It appears that at this point especially the loss of time, as compared with the impending danger, was of no consequence, and ordinary prudence required that the train should have been under perfect control to avoid the probable catastrophe. This being our view of the record, taken most favorably for defendant, it follows that the instructions criticized could not have prejudiced appellant.
After the wreck appellant sent its own surgeons to take charge of the injured, and to carry them to the hospital at Winona-! There was some evidence tending to
“All communications made to a physician or surgeon by a patient under his charge . . ■. are hereby declared privileged. ’ ’
It will be noted that plaintiff was a patient under the charge of the surgeons selected by defendant. By our statute “all communications” made to a physician by his patient are privileged. It is argued by appellant that the evidence offered did not consist of “communications,” by the patient to the physician; that the physician’s information was gained by an inspection of the patient, and that the statute did not cover this character of evidence. Taken literally, this view of the statute may be sound, but when we consider the manifest policy of this sort of legislation, we believe that what appellant sought to prove was communicated to him by the patient. Except as a physician, he was not qualified to testifjL His knowledge of the matter inquired about came to him from his examination of his |>atient. It is not necessary that the communication should be made by words in order to make it privileged. There is no more sacred relation of confidence than the relationship of physician and patient, and it was, in our opinion, the intention of the legislature to close the lips of the physician concerning any and every thing he knows about the patient by oral communication or from a physical examination of his patient. Quoting from Briggs v. Briggs, 20 Mich. 34:
*151 “He had no knowledge upon the subject except what he obtained in the course of his professional emloyment, and the case appears to be directly within the statute. . . .' We do not understand the information here referred to, to he confined to communications made by the patient to the physician, but regard it as protecting, with the veil of privilege, whatever, in order to enable, the physician to prescribe, was disclosed to any of his senses, and which in any way was brought to his knowledge for that purpose.”
The supreme court of Missouri had under review a statute similar to ours in Gartside v. Connecticut Mutual Life Ins. Co., 76 Mo. 446, 43 Am. Rep. 765, and said:
“The construction contended for by defendant’s counsel that by the statute, a physician is forbidden to disclose only such information as may have been communicated to him orally by his patient would, in our opinion, nullify the law. To hold that, while under the statute a physician would be forbidden from disclosing .a statement made to him by his patient that he was suffering from syphilis, and to allow him to state as the re-' suit of his observation and examination of the patient that he was diseased with syphilis would be to make the statute inconsistent with itself. It is doubtless true chat a physician learns more of the condition of a patient from his own diagnosis of the case than from what is communicated by the words of the patient; and to say that while the mouth of a physician is sealed as to the information acquired orally from his patient, it is opened wide as to information acquired from a source upon which he must rely, viz., his own diagnosis of Ihe case, would be to restrict the operation of the statute to narrower limits than was ever intended by the legislature and virtually to overthrow it.”
The statutes of the several states vary in the language employed, but in our view they were all designed to accomplish the same purpose. Our statute; in protect
It is also contended by appellant that the plaintiff was violating the act of Congress to regulate commerce, approved June 29, 1906, and amended April 13, 1908, and June 18, 1910, which thus provides:
“No common carrier subject to the provisions of this act, shall after January 1, 1907, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except ... to their, families, etc.
“Any common carrier violating this provision shall be deemed guilty of a misdemeanor and.for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation, shall he subject to a like penalty.”
‘ ‘ The rule invoked by the instructions here under consideration is one which should always be acted upon by the court in determining whether a peremptory instruction should be granted, but was not intended to be given in charge to the jury as a guide to be followed by it in arriving at its verdict.”
Affirmed.